2012 S.D. 88
S.D.2012Background
- S.W.C. is the biological father of four children enrolled in the Oglala Sioux Tribe; ICWA applies.
- Stepdaughter2 alleged rape by Father; children placed in foster care under an Immediate Protective Plan.
- DSS developed case plans for Father and the mothers; Father remained incarcerated, limiting rehabilitative options.
- Dispositional hearing held November 14, 2011; the children were in foster or treatment placements; parental rights began to be considered for termination.
- Court found DSS had made active efforts to reunify the family, but those efforts were unsuccessful; termination recommended as least restrictive.
- Final order terminated Father’s parental rights to all children; Mother1’s rights were not terminated for the stepchildren; two stepchildren placed in a planned permanent living arrangement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DSS satisfied ICWA’s active efforts standard | S.W.C. asserts DSS did not provide active efforts to reunify. | S.D. argues DSS’s efforts were sufficient and encompassed actions toward the family. | Active efforts satisfied; DSS’s services to all parents, including incarcerated Father, met ICWA standard. |
| Whether termination of parental rights was the least restrictive alternative | Father contends guardianship or another less restrictive option was possible given incarceration duration. | State argues permanency and risk to children justify termination as least restrictive. | Termination upheld as least restrictive alternative in the children’s best interests. |
Key Cases Cited
- In re L.S., 2012 S.D. 22 (2012) (best interests and least restrictive standard in termination cases)
- People ex rel. J.I.H., 768 N.W.2d 168 (S.D. 2009) (clear error standard for factual findings; ICWA standards apply)
- P.S.E., 816 N.W.2d 110 (S.D. 2012) (active vs. reasonable efforts under ICWA; deference to ICWA requirements)
- Dashiell R. v. State, Dep’t of Health & Soc. Servs., 222 P.3d 841 (Alaska 2009) (consideration of non-incarcerated parent's services in keeping family together)
- Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (ICWA aims to prevent unjustified removal of Indian children)
- In re A.S., 2000 S.D. 94 (S.D. 2000) (guardianship vs. termination considerations in best interests)